SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 25660/02 by Yuriy Vyeniaminovych ARKHIPOV against Ukraine

The European Court of Human Rights (Second Section), sitting on 18 May 2004 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mr M. Ugrekhelidze, judges ,

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 17 June 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Yuriy Vyeniaminovych Arkhipov, is a Ukrainian national, who was born in 1976. He is currently serving a prison sentence. He is represented before the Court by his mother, Ms Tamara Sukmanyuk, and Mr Sergiy Stetsko, a human rights activist.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

On 1 October 1999 the Starokonstiantynivsky District Court sentenced the applicant to ten days' administrative arrest following his conviction for failure to comply with the lawful demands of police officers (Article 185 of the Code of Administrative Offences).

Between 10 and 24 December 1999 the applicant took revenge on the judge of the Starokonstiantynivsky District Court by setting fire to his house. However, only minor damage was caused.

On 2 February 2000 the applicant was detained on suspicion of having been involved in an arson attack on the night of 31 January and 1 February 2000. The applicant was held in the Starokonstiantynivsky Local Police Department. On 6 February 2000 the applicant was released.

On 19 February 2000 the applicant was again detained by the police on suspicion of having been involved in an arson attack on 5 February 2000. On 22 February 2000 he was released. Before being released the applicant, in the presence of his lawyer, pleaded guilty to the offence.

On 25 February 2000 the police decided to conduct a joint investigation into the arson offences committed on 1 and 5 February 2000.

On 28 February 2000 the police reclassified the applicant's acts as an attempt to destroy the property of the judge in revenge for his conviction.

On 5 May 2000 the applicant was detained for a third time in view of the criminal proceedings pending against him.

On 25 May 2000 the applicant told the investigators that he was not guilty.

On 29 May 2000 the prosecution service completed its investigation into the facts of the case.

On 30 May 2000 the case file was remitted to the Polonne City Court for consideration on the merits. The applicant remained in detention.

In October 2000 the Polonne City Court commenced its consideration of the merits of the case.

On 22 January 2001 the Polonne City Court remitted the case for an additional investigation and ordered that the applicant was to remain in custody.

On 29 January 2001 the Khmelnytsk Regional Court upheld the decision to remit the case for additional investigation.

On 20 February 2001 the Slavutsky prosecution service undertook the additional investigation into the case.

On 5 October 2001 the Slavutsky City Court sentenced the applicant to four years' imprisonment following his conviction for the destruction of the judge's property in revenge for his conviction. The court examined the applicant's complaints that he had been ill-treated by police officers, but found no evidence of this. It stated that the applicant had not been held in custody between 22 February and 5 May 2000 and thus had had an opportunity to complain of the alleged his ill-treatment, either to the court or to the prosecution. However, he had failed to avail himself of these possibilities. Furthermore, the applicant had not submitted any medical evidence in support of his allegations and had failed, moreover, to prove that he had sustained injuries at the hands of the police.

On 12 October 2001 the applicant lodged an appeal against the judgment of 5 October 2001. On 22 October 2001 the Slavutsky City Court refused the applicant leave to appeal on account of his failure to comply with the rules governing the form and content of an appeal. The applicant was allowed time to rectify the shortcomings. On 1 November 2001 the applicant's appeal was left without consideration because of his failure to comply with the ruling of 22 October 2001 and to provide the relevant number of copies of his appeal to the parties.

On 5 November 2001 the applicant complained about the ruling of 1 November 2001 to the Khmelnytsk Regional Court of Appeal. On 4 December 2001 that court quashed the ruling on the ground that it was unlawful. It also decided that it had jurisdiction to hear the applicant's appeal. The applicant remained in detention.

On 22 January 2002 the Khmelnytsk Regional Court of Appeal upheld the judgment of the Slavutsky City Court of 5 October 2001 and dismissed the applicant's appeal as being unsubstantiated. It confirmed the decision of the first-instance court rejecting the applicant's allegations of ill-treatment.

1. Constitution of Ukraine

Article 125

“... The Supreme Court of Ukraine is highest judicial body in the system of courts of general jurisdiction...

Courts of appeal and local courts operate in accordance with the law.”

2. Code of Criminal Procedure (as amended on 21 June 2001) [ These amendments entered into force on 29 June 2001. ]

Article 383

Court decisions that may be reviewed in cassation proceedings

“The following decisions may be reviewed in cassation proceedings:

1) judgments, rulings and resolutions of an appellate court rendered by it as a court of first instance; and

2) judgments and resolutions of an appellate court rendered by it in appeal proceedings.

Judgments and resolutions of district (city) courts, inter-district (circuit) courts and garrison military courts may be also reviewed in cassation proceedings, as well as  rulings of appellate courts rendered with regard to those judgments and resolutions.”

Article 384

Persons entitled to lodge a cassation appeal or file a cassation petition

“Cassation appeals against the court decisions referred to in part one of Article 383 of this Code may be lodged by the persons defined by Article 348 of this Code.

Cassation appeals against the court decisions referred to in part two of Article 383 of this Code may be lodged by:

1) a convicted person, or his/her legal representative or defence counsel in respect of provisions which concern the interests of the convicted person;

2) an acquitted person or his/her legal representative or defence counsel in respect of the operative provisions of the acquittal;

3) a plaintiff, respondent or their representatives in respect of the provisions which concern a settlement of the claim;

4) a victim or his/her representative in respect of the provisions which concern the victim's interests.    ...

Persons who are entitled to lodge a cassation appeal or a cassation petition may be apprised of the materials of the court case-file in order to decide whether or not to lodge a cassation complaint or petition.” (As amended according to Law No. 2670-III of 12 July 2001)

Article 385

Courts which examine cases in cassation proceedings

“Cassation complaints and petitions are examined by:

1) a panel of judges of  the Criminal Chamber of the Supreme Court of Ukraine in respect of court decisions rendered by the Supreme Court of the Crimean Autonomous Republic, the regions and the Kyiv and Sevastopol city courts, and in respect of judgments of district (city) courts and inter-district (circuit) courts; ...”

Article 386

Time limits for lodging a cassation appeal or filing a cassation petition

“Cassation appeals and petitions against the court decisions referred to in part one of Article 383 of this Code may be lodged within one month from the date of delivery of the judgment, ruling or resolution complained of, and where lodged by a convicted person who is held in custody within the same period from the date on which he has been served with a copy of the judgment or resolution.

Cassation appeals against the court decisions referred to in paragraph two of Article 383 of this Code may be lodged within six months from the date of their entry into force.

During the period specified for lodging a cassation complaint, no one, save the court of cassation, shall request or obtain the case file from the court executing the court decision.

In the event that the period prescribed by parts one and two of this Article for lodging a complaint or filing a petition has been missed and there is no application for it to be extended, the complaint or petition shall be held by a judge's resolution not to be subject to examination. This period may be extended in the instances and in accordance with the procedure provided for by Article 353 of this Code.”

Article 388

The consideration of the case in the court of cassation

“The case file together with the cassation appeal and/or petition against a judicial decision mentioned in Article 383 § 1 of the Code shall be remitted for consideration to the court of cassation once the  case file has been deposited with the court.

A cassation appeal or petition lodged by the prosecutor against a judicial decision mentioned in Article 383 § 2 of this Code shall be referred to a judge of the court of cassation, who shall decide, within 15 days from the date of receipt, on the initiation of the proceedings upon the cassation appeal. The cassation proceedings shall be initiated unless the cassation appeal does not comply with the requirements of Article 350, 383 § 2, 384, 386 § 2, 396 § 1 of this Code, for which reasons the appeal in cassation shall not be considered by the court of cassation. The judge shall adopt a resolution with regard to the cassation appeal, a copy of which shall be sent to the prosecutor or the person lodging a cassation appeal. The resolution is not subject to appeal. A refusal to initiate cassation proceedings is not an obstacle to review of the case once the person who lodged a cassation appeal has rectified any mistake in it and has complied with the time-limits envisaged by Article 386 of this Code, or if it is lodged not later than one month from the date of receipt of the copy of the resolution on refusal to initiate cassation proceedings.

The judge who decided on the initiation of the criminal proceedings may also decide to suspend the enforcement of the judgment in the case until the cassation appeal has been considered; this procedure does not concern decisions mentioned in Article 383 § 1 of this Code.”

Article 389

The consequences of receipt of the cassation appeals or petitions and the procedure for their appointment for consideration

“The lodging of cassation appeals or petitions against a judicial decision mentioned in Article 383 of the Code suspends its entry into force.

The lodging of cassation appeals or petitions against a judicial decision mentioned in Article 383 of the Code does not suspend its entry into force.”

Article 394

Examination of a case by a court of cassation instance

“Cassation appeals and petitions against court decisions referred to in part one of Article 383 of this Code shall be examined and notice of that examination served on the prosecutor and the persons referred to in Article 384 of this Code.

Cassation appeals and petitions against court decisions referred to in part two of Article 383 of this Code shall be examined within thirty days of receipt by the cassation court composed of three judges with the participation of a prosecutor. The court shall either assign the case for examination and must notify the persons referred to in Article 384 of this Code accordingly or dismiss it.

The case assigned for examination, with notice served on the prosecutor and the persons referred to in Article 384 of this Code, shall be examined by the cassation court composed of three judges with the participation of a prosecutor in accordance with the procedure provided for by parts one, two and three of Article 362 of this Code.

The deliberations of the cassation court's judges shall be conducted in accordance with the requirements provided for by Articles 322 and 325 of this Code.”

Article 396

Results of the examination of a case by a court of cassation instance

“As a result of the examination of a case in accordance with the cassation procedure, the court shall take one of the following decisions:

1) uphold the judgment, ruling or resolution and dismiss the cassation complaint or petition;

2) reverse the judgment, ruling and resolution refer the case for a fresh investigation or trial or appeal hearing;

3) reverse the judgment, ruling or resolution and terminate the proceedings in a case;

4) modify the judgment, ruling or resolution.

In the event of withdrawal of a cassation complaint or petition, the cassation court shall issue a ruling terminating the cassation proceedings unless the decision has been appealed against by other participants in the trial in accordance with the cassation procedure.”

Article 398

Grounds for reversal or modification of a judgment, ruling or resolution

“Grounds for reversal or modification of a judgment, ruling or resolution shall be:

1) substantial violation of the law of criminal procedure;

2) incorrect application of the criminal law;

3) disproportionate punishment imposed on the convicted person in conjunction with the gravity of the crime.

A judgment of an appellate court rendered by it as a court of first instance may also be reversed or modified if the inquiry, pre-trial or judicial investigation has been one-sided or incomplete or if the conclusions of the court established in the judgment are inconsistent with the actual circumstances of the case.

In resolving the issue of availability of the grounds referred to in part 1 of this Article, a court of cassation shall be guided by Articles 368-372 of this Code.

A court of cassation shall have no powers to reverse a judgment of acquittal, a ruling or resolution terminating proceedings in the case merely on the grounds of a substantial violation of the rights of the accused.”

COMPLAINTS

The applicant complains that he was subjected to inhuman and degrading treatment while in police custody and only pleaded guilty under duress. He also alleges that his detention was unlawful. He refers to an infringement of Articles 3 and 5 of the Convention in this connection.

The applicant further complains under Article 6 § 1 of the Convention that the domestic courts misapplied domestic law when considering his case, thus denying him a fair hearing. He also alleges that the courts erred in both their assessment of the evidence and the establishment of the facts. He submits that he had not appealed in cassation because the cassation appeal procedure was an extraordinary and ineffective procedure.

The applicant also complains that he had no effective remedies with which to contest the breaches of his Convention rights. He alleges an infringement of Article 13 of the Convention.

THE LAW

1. The applicant maintains that he was detained unlawfully, contrary to Article 5 § 1(c) of the Convention and that the length of his detention was unreasonable, contrary to Article 5 § 3 of the Convention. These provisions provide:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Court finds that the complaints to which the applicant refers in this part of the application relate to events or decisions which intervened more than six months before the date of introduction of the application.

It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicant complains that he was ill-treated in detention by police officers and was forced to plead guilty. He also alleges that his complaints were not investigated. These matters breached Article 3 of the Convention, which in so far as relevant provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court considers that the applicant has not laid the basis of an arguable complaint under Article 3. It notes the reasons given by the domestic courts for rejecting his allegations of ill-treatment, in particular his failure to make an official complaint in a timely manner when released from detention. Having regard to the case file, it concludes that the complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

In so far as the applicant maintains that the fairness of his trial was undermined on account of the use of incriminating evidence obtained from him under conditions of oppression, the Court considers that this matter falls to be examined under Article 6.

3. The applicant complains that he did not receive a fair trial before the domestic courts. He invokes Article 6 § 1 of the Convention, which provides, in so far as relevant:

“In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”

The Court notes that the applicant did not appeal in cassation to the Supreme Court of Ukraine against the decisions of the first instance court and the court of appeal. It recalls that, according to Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.

It reiterates in this connection that this rule only requires normal recourse by an applicant to such remedies which are likely to be effective, sufficient and available. For a remedy to be effective, it must be, inter alia , capable of remedying the impugned state of affairs directly. Moreover, a remedy must exist with a sufficient degree of certainty to be regarded as effective (see, mutatis mutandis , Vorobyeva v. Ukraine (dec.), no. 27517/02, 17 December 2002).

The Court notes that a third level of jurisdiction was introduced into Ukrainian criminal procedure on 21 June 2001 [With effect from 29 June 2001]. According to the relevant provisions of the Code of Criminal Procedure, a cassation appeal similar to the one found in other member States of the Council of Europe is now available to both the prosecution and defence in a criminal case. Its exercise does not depend on the discretionary power of a State authority. Leave to appeal in cassation against a decision is given by a judge of the Supreme Court, who may decide to refer the cassation appeal to a three-judge chamber of the Supreme Court for consideration of its merits.

The Court further notes that decisions of the lower courts given after 29 June 2001, as in the applicant's case, cannot be challenged in cassation indefinitely, but only within the time-limits laid down in the Code of Criminal Procedure. The new cassation procedure does not therefore undermine the principle of legal certainty, one of the fundamental aspects of the rule of law, which requires, inter alia , that where a court has given a final ruling on a matter, that ruling should not be capable of being called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61 , ECHR 1999 ‑ VII ).

In the instant case, the remedy already existed when the applicant's case was still pending before the court of first instance. The applicant, who had legal representation, must be taken to have been aware of this new remedy and of his entitlement to use it in order to appeal the decision given by the Khmelnytsk Regional Court of Appeal on 22 January 2002.

It is to be noted also that the applicant alleged that the law had been misapplied by the domestic courts and that evidence against him had been procured under duress. These are matters falling within the jurisdiction of the Supreme Court and they could have constituted grounds for seeking leave to appeal in cassation.

For the Court, an appeal in cassation can be considered an effective remedy against lower court decisions taken after 29 June 2001. It would add that the existence of mere doubts as to the prospects of success of a particular remedy, which is not obviously futile, is not a valid reason for failing to exhaust domestic remedies (see the Van Oosterwijck v. Belgium judgment of 6 November 1980, Series A no. 40, p. 18, § 37, and A.B. v. the Netherlands , no. 37328/97, 29 January 2002, § 72). It rejects accordingly the applicant's reasons for not availing himself of the remedy.

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

4. The applicant further alleges that he did not have effective remedies in respect of his complaints under Articles 5 § 3 and 6 of the Convention. He refers to Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court can only refer to the grounds on which it has declared the applicant's complaints under Articles 3 (manifestly ill-founded), 5 (out-of -time) and 6 (non-exhaustion) inadmissible. Those grounds of themselves  suffice to reject, globally, the applicant's related Article 13 complaints as being manifestly ill-founded pursuant to Article 35 § 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President